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Miscellany

The Author as Adversary at Iowa Law Review

If there were a law professor named Frankenstein, what would his creation be?

Maybe Iowa Law Review.

Rather than treat me as a partner in publishing an article of mine that the journal accepted back in 2019, the journal treated me as an adversary—just as people treat each other in the materials that we teach in law school.

First, an editor played the sort of power game with me that parties to litigation use against each other. He threatened to publish the article without my consent because I was late turning in revisions. That caused me to submit a final draft that was rough at best.

When I later told the editor-in-chief what happened, the journal doubled down, telling me I was the only one at fault, refusing to update the article in the legal databases to a satisfactory version, and asking me to reach out to University counsel if I had any further questions—just what overenthusiastic law students might think is the proper way to resolve a dispute.

Throw in a bit of, well, law-professor-like imperiousness—the journal told me it expects any article submitted to it to be ready for publication, the implication being that the journal can go to press with an author’s work whenever it wants—and Law Professor Frankenstein’s creation is complete.

Here is how events unfolded.

A few months after the pandemic hit, I found myself about twelve hours past deadline in returning final edits to Iowa Law Review. I had found a major flaw in the argument of my paper and didn’t know what to do.

Then I received this email from the managing editor: “we regrettably must move forward with publishing the piece with the previously edited version we sent.”

This is, of course, every author’s nightmare: that a journal will go to press without the author’s consent. Which is why most publication agreements have a clause like this one in the agreement I signed with Iowa Law Review: “The Work shall not be published by the Review unless the Author reviews and approves the Work.”

Authors and journals are natural partners because their interests are aligned: both are on a mission to get quality scholarship into print. The editor—and, as I later learned to my dismay, the entire Iowa Law Review—had lost sight of that mission, transforming a partnership into an adversarial affair.

What I should have done was to remind the editor of both the publication agreement and the journal’s mission to publish quality work, and to ask that the article be bumped to the next volume—or, in a worst-case scenario, withdrawn so that I could resubmit it in the summer submissions cycle.

Instead, I panicked.

I’d already been up all night trying to get the draft into shape. All I could think about was how I would feel if my flawed draft wound up in print. It was supposed to be my tenure piece.

So, rather than do the right thing, I raced madly to complete my revisions and sent an updated draft to the journal about nine hours later.

The editor replied: “Although we have already spent the balance of the day conducting the final review of the earlier version, we will accept this updated copy.”

Yes, he was so confident of the journal’s right to publish without my consent that he thought he was doing me a favor by accepting my draft.

I had almost completely rewritten the paper. The blackline I sent showed that more than half (54%, to be precise) of the text was brand new. I also attached a folder containing twenty-six new sources.

Threats aside, that should have been a red flag for the editor.

The only way for an editor to handle these changes responsibly would have been to buy time to review them by bumping the piece to the next volume—or to rescind my publication offer.

Instead, the journal went to press, explaining that “the only thing we will have time to do is check Bluebook formatting one final time and make sure nothing is egregiously out of place above the line[.]”

Of course, you can’t rewrite half an article from scratch in a few days’ time and expect it to be anything but rough.

A month after the article appeared in print, I phoned the new editor-in-chief to ask if she might be willing to swap a revised, finished draft for the current one in the Heinonline, Westlaw, and Lexis databases.

I figured she might decline to make the switch, but I thought that, regardless, she would be horrified to hear that an editor had threatened to publish my work without consent—and that she would apologize.

Instead, she sent me what might best be described as a legal memo.

“I have located and reviewed all relevant communications between you and the Iowa Law Review,” it began. Over five single-spaced pages, the memo picked through nearly all of my email exchanges with the editors over the previous year, going back nearly to the date I accepted the journal’s publication offer.

The gist of the memo was: This is your fault because you missed our deadline.

I replied that it didn’t matter who was at fault. What mattered was that a rough draft of an article had wound up in print. Something had to be done about that.

“If you have any further requests, please direct them to our university legal counsel,” the editor replied.

I was floored, of course. But I couldn’t say that my students would not have drawn the same lessons from my classes about how to conduct business as these students seemed to have drawn from their two years of legal education.

I wrote to Iowa Law’s dean, Kevin Washburn. He did not reply.

Unsure what to do next, I consulted with a colleague, who suggested I phone the faculty advisor and propose the following: The journal publishes a straw reply to my article that points out that it looks incomplete; I publish a response that explains that due to a “hiccup” in the publication process an incomplete draft of the paper had wound up in print; I attach a revised draft to the response.

The journal agreed. I thought this meant the editors had understood that threatening to publish without consent is wrong—or at least that publishing rough drafts is bad for the journal. I soon discovered that the editors again thought that they were just doing me a favor.

The following spring, after the straw reply—which I had tapped my colleague Brian L. Frye to write—had been published, the journal’s new board decided that I wouldn’t be permitted to mention the “hiccup” in my response after all.

“[W]e do not feel comfortable including the ‘hiccup’ language as from our perspective there was no hiccup in the publication process,” wrote an editor.

No, not even a hiccup.

Did the new board really understand what had happened the previous year?

Yes, I was assured. The threat to publish work without consent didn’t matter, the new editor-in-chief explained via Zoom, because (in paraphrase): “we expect that, when you submit an article to us, it is ready for publication.”

That, of course, will be news to most authors submitting articles to Iowa Law Review, not to mention the Iowa Law 2Ls slaving away checking cites.

After nearly two months, the students offered to restore my original “hiccup” language.

But I was done with the reply-response fix.

The “hiccup” language was both a whitewash of the journal’s threat to publish without consent and a pact to mislead readers about the evolution of academic debate regarding the article. It was also unlikely that a reader would find the corrected draft attached to a response to a reply to the original article.

I wanted an acknowledgment that threatening to publish without consent is wrong—a betrayal both of the author and of the journal’s readers. And I wanted to renew my request that the journal substitute a revised draft in the databases. After placing a few phone calls, I learned that Heinonline, Lexis, and Westlaw all routinely substitute new drafts for published articles. All it takes is an email from the editors.

The journal again refused.

I can think of plenty of reasons why a journal might hesitate to substitute a revised draft.

It might confuse readers. (Solution: Append an editorial note.)

It would mess up citations to the original. (Solution: Add a decimal to the new page numbers, as in 1749.1.)

Everyone might want to do it. (Solution: Limit it to victims of threats to publish without their consent.)

There’s no one available to cite-check the revised version. (Solution: Find someone. Or don’t—54% of the version that is currently in print was not cite-checked either—but that didn’t prevent the journal from publishing it when it was expedient for the journal to do so.)

But even though I begged the journal for a reason, the only one I ever got was that, as the editor-in-chief put it, “[i]t has never been Iowa Law Review’s policy to replace a published piece with an updated or revised version.”

In other words: because.

To this day, there has been no resolution. The rough draft of my article is still available in all the legal databases—and displayed on Iowa Law Review’s website—without any warning to readers regarding the unsavory circumstances of its publication. And the journal has never acknowledged that what it did was wrong—or explained to me why it will not implement a quick and effective fix.

I do think that Iowa Law Review is a troubling reflection of the lessons students absorb in law school.

Fortunately, it is not the norm.

I have worked with eleven journals. Only Iowa Law Review has treated me as an adversary—across three successive boards.

(The article as it should appear in Iowa Law Review is available here.)

UPDATE (September 3, 2022)

When I wrote the forgoing last spring, I had assumed that the buck stopped with the student editors, and that apathy and avoidance explained why the Iowa Law administration had not stepped in to put this right—after all, Iowa Law’s Dean Washburn never had responded to the email I sent him back in summer 2020.

It never occurred to me that the Iowa Law administration might approve of the students’ behavior.

I decided to write to the dean again this past July (copying the journal’s editor-in-chief and faculty adviser), only to learn that I had been naive.

The dean wrote this in reply to my message:

Thanks you for your message, Professor Woodcock. I did receive your previous message and, afterwards, I followed up with the journal.

The ILR has significant editorial independence – that is the meaning of “student-edited.”  However, I did satisfy myself that the ILR published a document that you provided.  That resolved the case for me.  I regret that I did not write back to let you know. 

When you sent your article to the ILR and asked that it be accepted and published, there was a risk that just an event might occur. I am sorry that the final result did not meet your satisfaction, but it was your work so I see no question of their integrity.

If it make you feel any better, almost every article I have published gives me a pang as I read it after publication.  I see arguments that I might have framed better, rhetoric that could have been more artful or more precise, or even an additional source that I could have cited. I think that this is one of the risks of writing for publication.

I am confident that succeeding student editorial boards have learned from their correspondence with you, but they have a new round of articles that they must work hard to publish. I encourage you to do the same. You are obviously quite thoughtful. I suspect that you have a lot more to contribute.  Thank you for reaching out. 

Kevin Washburn

Note the dean’s position:

  • If you submit an article to Iowa Law Review, you accept the risk that the editors will use threats to publish an incomplete draft without your permission in order to compel you to sign off on publication. (“When you sent your article to the ILR and asked that it be accepted and published, there was a risk that just [sic] an event might occur.”)
  • So long as the flawed draft that is published has not been altered by the editors, the Iowa Law administration sees no problem. (“I did satisfy myself that the ILR published a document that you provided. That resolved the case for me.”)

Dean Washburn’s email is a warning to scholars everywhere not to trust the quality of the scholarship that they find in Iowa Law Review. And a warning to authors that their interests count for almost nothing at this journal.

Indeed, it is remarkable to me that, despite having received two years of protestations from me regarding the quality of the article that Iowa Law Review published, neither the editors nor the Iowa Law administration has shown any interest in reviewing the substance of the article in order to understand the extent of the problems with it. Nor have either of them shown any interest in, at the very least, warning readers that the author considers the article as it appears in the journal to be seriously flawed.

One gets the impression that Iowa Law Review, and the Iowa Law administration more generally, wish to be left alone to go through the motions of running a top-ranked law review without having to concern themselves with the actual quality of what the Iowa Law Review publishes.

This is the only way to understand how the journal could use threats to compel an author to meet a deadline and still expect to receive a draft of passable quality, then waive its own quality control checks in order to rush it into print, and then refuse to update the article in the databases when the author brings his concerns about the article’s quality to them.

And what is one to make of the half-admission in the dean’s email, to wit, “I am confident that succeeding student editorial boards have learned from their correspondence with you”?

Unlike the editors, who refused to let me describe my experience as a “hiccup” because in their view “there was no hiccup”, Dean Washburn seems to think that something did transpire from which the editors might learn.

It is Accountability 101, however, that an organization will not learn unless it acts to correct its mistakes, even when doing so is costly (which it would not be in this case). And Iowa Law Review has been unwilling to fix my article.

What I find most troubling about this episode is that it is a study in organizational evasion of accountability carried out by students who are supposed to be in the process of training to ensure that the organizations of the future will take responsibility for their misdeeds—and ratified by the lead trainer himself.

If any member of the three Iowa Law Review boards with which I have dealt on this issue goes on to advise a Peloton to stonewall the Consumer Products Safety Commission after its exercise bikes start chewing up toddlers, the former law review editor will have good reason to protest that she learned how to do that at in law school. (Fortunately, the stakes of this particular lesson have been comparatively low.)

I responded to the dean’s email.

Dear Dean Washburn,

. . .

As much as everyone would like the problem here to be one of run-of-the-mill author’s remorse, those are just not the facts that we actually have.

ILR did something highly unusual and totally indefensible in this case: it threatened to publish work without an author’s consent.

Until the significance of this fact is properly appreciated, this matter cannot be properly resolved. The notion that there is no question of the journal’s integrity when it procured a draft from an author by such means is something that I think any outside observer would reject.

I have published nearly a dozen other articles and, just as you feel about your own publications, there are things I would change in every one of them. But the only journal I have ever asked to make a change is ILR.

That’s not an accident.

It’s because the journal caused me to sign off on publication of a draft that I never would have signed off upon if an editor had not threatened to publish my work without my permission. As a result, the problems with my article are orders of magnitude worse than for anything else that I have published or indeed for any article that anyone might voluntarily publish.

It’s one thing to find problems in a piece you published—they are on you—but quite another thing to find problems in a piece you didn’t want to publish but which wound up in print because an editor strong-armed you. What ILR did is so beyond the bounds of normal practice that I am confident that you have never experienced what that feels like. But if you were to experience it, you would understand why this matter is so important to me. 

ILR has never taken responsibility for this obviously wrong behavior. I can understand why a group of students would feel defensive when confronted with shortcomings in their conduct, especially when that criticism is coming from an outsider from another school. That’s all the more reason why, in a matter such as this, students need guidance from leaders within their own institution to get to a just result.

The pity of it all is that there is literally no cost at all to ILR to fix the problem—the journal can make it right with a couple of emails and move on to this volume’s crop of articles. All the more so because this problem is rooted in such an extraordinary and (I assume) unique lapse in professionalism that providing a remedy here sets no precedent whatsoever in relation to cases of run-of-the-mill author’s remorse.

Sincerely,

Ramsi

There has been no reply.